The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1887-01-14

some acts 10 bs done which are pecessar,
10 the peace, good order, health or eafety
Of the city OF the people; and in eitheI
Of, or failure to comply with ordinance.
adopted for these purposes, and when Il
has done 30, Its power under the clause
In question is exhausted. T5 TE'r
But II there Ia. any doubt on this point
this doubt must be resolved under thu
rulo OF construction before referred to
Jonesvs Richmond Ia no. ct varianc,
with this view. -
In the third plscs the requisite powe,
Is supposed TO hays been conferred BY tht
titty.second section OF the Act OF March II
1886, which reads as follows: "Tho Coun
4 Gil shall have authority to provide for tn,
appointment. organization and regulation
OF 'city watch" to prescribe tho duties
and to define the powers OF the seyera
officers, members and classes thereof IL
such manner rs will most effectually pre-
serve the peace and good order OF the
said city, and to aecure the inhabitant.
thereof from violence and their property
from fires or otle less or injury" The
Act does not define what 10 meant by
'city watch" but ss tho term has def
mite legal inesning, 1t must bs under.
stood to have boan employed with such
meaning. s''nq9H4
Blackstone, pages 1857, OF his C3m. in
speaking Of tho duties OF c,nstablea, says
Zone OF their principal duties arising iron,
the statute Winchester which appoints
them, is to keep watch and ward in their
respective jurisdictions. Ward, guard or
custodian Is chiefly applied 10 the day
time In order to apprehend rioters and
robbers on the highway. 49, . Watch
is properly applicable to the night only
and 1t begins when the ward ends and
ends when the ward begins" The city
watch must therefore BIO construed to
mean oonstables or ofiicsrs, whose duty is
to serve at night. But in whatever sense
the term was used, It ia apparent tha. il
did not include the City Sergeant and his
deputies from this single consideration
that by the samo Act, Section 81 1t was
provided that "the City Council shall
have authority to appoint 8 sergeant and
such constables for said city IS they shall
Judge the public interest, good order,
peace and eafs:y Of Sid city
may require, and may allow SUCH
sergeant or any constable such
deputy or deputies, as they may think
proper" This section has been 50 IA,
amended es to provide for the election Of
the sergeant by the people. There being
two sections in the same cot, one pro-
viding for the appointment OF q city
watch and the other Of sergeant and his
deputies, the officers referred to therein
must be regarded and .t.ested as two dis
tlnct classes OF officers. It is believed the
power to appoint city watch has not
bsen exercised by the Council. In any
event 1t would BIO a strained construction
to conclude that when Council adopted
the fourth SECTION Of this o.d:uaaGs, !. e.,
"Tkp ssld commissioners With the City
Sergeant and his .dsputiss shuli constitute
a Police Department Of tho city OF Wheel.
ing" it was exercising the authority to
appoint a "city watch" such ordinance
including, as it does, the sergeant and his
deputies, who cannot BE- regarded az
part Of the "city watch" ain, therefore,
81 the ppinian thst tho authority clained
|! by tho Council cannot DO derived from
this provision Of law. s.E 55r ra5' :
In the next place, 1t Is supposed by the
respondent that the sixty.eiphth section
OF the Act OF March II, 1886, has some
bearing on the question; the Act not pro-
viding in terms what should DO the duty
Of the sergeant and big deputies, this sec.
ton in order 10 supply the want, provided
that the Council should prescribe their
duties and also what they should not dol
but it is dit!icnlt to see ioT the power to
create Police Department can beinferred
from this sixty-eighth section, and do
not consider it necessary 10 dwell on it. :,
And again the twenty.ninth section OF
the Act Of March !, 1879, and the third
section OF the Act OF March Is, 1882, are
relied on as sutlicient to furnish the requi-
site authority,
4speak Of these two SECTIONS together
because they are naturally repeated, and
both involve the game question. TIE
twenty-ninth section OF the Act OF March,
1879, is as follows, so far ss it ia pertinent:
1.-THE Council shall have authority to pass
all ordinances mot repugnant to the Cor
stitution and laws Of the United States
and Of this Stetei WHICH shall i,s nccesaa.
ry and proper 10 carry into full effect any
power, authority, capacity o. jurisdiction
which is or shall be granted to, or vested
in the said city or in the COUNCIL, OF any
officer OF said 'city.h -, Y
The third section OF the Act OF March,
l8S2iI have already quoted but will re-
peat in order to bring out the NECESSARY
point. It is IS follows, 90 IA. as it is mecca.
sary to quote 1t: "thc Council shsll have
authority, unless otherwise provided by
law, to provide by ordinance for tho an.
pointment or ELECTION by the Council Of
such officers, whose appointment is not
provided for by law, rs shall ia necessary
or proper to carry into full effect any au.
thority, power, capacity or jurisdiction
which Ia ar ohsll be vested in the said
city or In the Council, or In the Mayor or
aldermen thereof; to grant to the officers
so appointed or elected by tho Council!
the poYers necessary or nroner for the
purposes above mentioned, 10 define thej.
duties (and) to 61 ther terms Of oiIice.n,
The former section means oimply this:
when any power or authority has been
granted to, oTia Yeated IN the Council tina.
it's authorised to pass such ordinances rs
are necessary and proper to carry into full
effect such power or authority; and the
latter is Of the same character; 1t merely
authorizes tho appointment or election
by Council Of such officers as may DO
necessary or proper to carry into fall effect
any power or authority vested in it, or in
the city or in the Mayor, in case their ap-
pointment or election has not boon other.
wise provided for, with the right to dele
gsts to them such power as may be nece;-
sary or proper for thu purposa.
In other words, in neither OF these sac.
tons ia there grant OF any independent
or specific power to the Council; both i'm
ply or require the EXISTENCE al powers |
poRtorred by other provisions OF the char
ter. When q power has been ascertaiued |
to be vested in the Couucil, these sec.
lions come into play and aulhorizs the
Council TO carry it into full mower aud |
effect by having ordinances necessary and /
proper to this end, and also to provide for
the appointment or election Of the
necessary officers and to confer upon
them the powers necessary to effect the
purpose. - i's..=.2s, .}..t5j
A 4 - -